Citation NR: 9804197
Decision Date: 02/12/98 Archive Date: 02/17/98
DOCKET NO. 94-25 740 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to an increased rating for post-traumatic stress
disorder, which is currently rated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Keith W. Allen, Counsel
INTRODUCTION
The veteran served on active duty in the military from
October 1966 to August 1970, from November 1970 to July 1972,
from July 1974 to December 1974, from June 1975 to June 1979,
and from January 1982 to January 1986.
In August 1991, the Department of Veterans Affairs (VA)
Regional Office (RO) in Detroit, Michigan, reduced the rating
for the veteran’s service-connected
post-traumatic stress disorder (PTSD) from 50 to 30 percent.
The veteran disagreed with the RO’s decision to reduce the
rating for his psychiatric disability, and he gave testimony
concerning his claim in February 1993 during a hearing that
was conducted at the RO. When his request for a higher
rating continued to be denied, he appealed to the Board of
Veterans’ Appeals (Board). The Board determined in August
1996 that a rating higher than 30 percent for the PTSD was
not warranted. The veteran appealed to the United States
Court of Veterans Appeals (Court).
While the case was pending at the Court, the veteran’s
representative and the Office of General Counsel for VA,
which represents the Secretary of VA in cases that are
appealed to the Court, filed a joint motion requesting that
the Court vacate the Board’s decision and remand the case for
further development and readjudication. The specifics of the
joint motion for remand will be discussed in further detail
below. The Court granted the joint motion in a March 1997
order. [citation redacted]. The case has since been returned to the Board for compliance with directives that were specified.
REMAND
The severity of the veteran’s PTSD has, up until now, been
determined by the criteria of 38 C.F.R. § 4.132, Diagnostic
Code 9411. Under this Diagnostic Code, a 100 percent rating
is warranted when the attitudes of all contacts except the
most intimate are so adversely affected as to result in
virtual isolation in the community, when psychoneurotic
symptoms are totally incapacitating, bordering on gross
repudiation of reality, with disturbed thought or behavioral
processes associated with almost all daily
activities,...resulting in profound retreat from mature
behavior, and when the veteran is demonstrably unable to
obtain or retain employment. A 70 percent rating is
warranted when the ability to establish and maintain
effective or favorable relationships with people is severely
impaired, and the psychoneurotic symptoms are of such
severity and persistence that there is severe impairment in
the ability to obtain or retain employment. A 50 percent
rating requires that there be evidence of considerable social
and industrial impairment, and a 30 percent rating (which is
the rating that is currently in effect) requires that there
be definite social and industrial impairment. Id.
In order to address important issues and concerns that were
noted by the Court in a related case, Hood v. Brown,
4 Vet. App. 301 (1993), the provisions of 38 C.F.R. § 4.132
were amended and redesignated as 38 C.F.R. § 4.130.
The new criteria became effective on November 7, 1996, which
was a few months after the Board made its prior
determination, in August 1996, concerning the severity of the
veteran’s PTSD. This is significant because, under the new
regulation, the criteria used for determining the severity of
his PTSD have substantially changed, focusing more on
individual symptoms as manifested throughout the record,
rather than on medical opinions or other evidence
characterizing overall social and industrial impairment as,
for example, “totally incapacitating, severe, considerable,
or definite.” It is also important in the sense that the new
criteria for determining the severity of the PTSD took effect
since the veteran was last examined by a VA psychiatrist for
compensation purposes.
In Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), the
Court held that, where, as in this case, the law or
regulation changes after a claim has been filed or reopened
but before the administrative or judicial appeal has been
concluded, the version most favorable to the veteran will
apply. Hence, the veteran must be evaluated under both the
new and the old criteria used by VA for rating the severity
of his psychiatric disability. As the medical evidence
currently on file does not provide sufficient information to
do this, it is necessary to have him undergo additional
VA psychiatric testing and evaluation, in accordance with the
newly implemented diagnostic criteria. Gregory v. Brown, 8
Vet. App. 563 (1996); Caffrey v. Brown, 6 Vet. App. 377
(1994). The joint motion for remand also directs that VA
consider whether the veteran is entitled to a total
disability rating based on individual unemployability (TDIU),
pursuant to the provisions of 38 C.F.R. § 4.16, even though
this issue has not been expressly raised or mentioned by the
veteran. Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).
Having the veteran reexamined will go a long way in assisting
VA in making this determination because the criteria of
38 C.F.R. § 4.16 are similar to those listed in 38 C.F.R.
§ 4.132, Diagnostic Code 9411 (at least for a 100 percent
rating), insofar as both regulations require that material
determinations be made concerning the veteran’s ability to
work (as judged by the relative severity of his PTSD, his
level of education and past work experience, etc.).
In the event that the veteran continues to receive treatment
for PTSD, or for other types of mental illness, then the
records of his ongoing treatment should be obtained, as this
evidence would also have a bearing on this appeal. Lind v.
Principi, 3 Vet. App. 493 (1992). Lastly, records show that
the veteran was awarded disability benefits and/or
supplemental security income by the Social Security
Administration (SSA) in June and July 1993. The records and
other evidence that were used by that agency in deciding his
claim should be obtained since that evidence could provide
valuable information concerning the present severity of his
PTSD. Murincsak v. Derwinski, 2 Vet. App. 363 (1992).
The case is accordingly REMANDED to the RO for the following
development and action:
1. The veteran should be requested to
submit a list (containing names, dates,
and addresses) of any additional sources
of treatment (VA, private, or other) that
he has received since 1996 for PTSD, or
for other psychiatric illness, the
records of which have not already been
identified and/or obtained. After
securing any necessary release forms or
authorization, the RO should directly
contact the sources which are identified
and obtain copies of the records in their
possession, as required by 38 C.F.R.
§ 3.159.
2. The RO should contact the Social
Security Administration and obtain any
medical records or other documentary
evidence that was used by that agency in
deciding the veteran’s claim for
disability benefits and/or supplemental
security income in June and July 1993,
including a copy of the decision itself.
3. The veteran should be examined by a
VA psychiatrist who has not previously
examined him, if this is possible,
to determine the nature, extent, and
severity of his PTSD. The examiner
should also indicate whether the veteran
is affected by other psychiatric
conditions and should comment on the
severity of the additional conditions
noted and whether they are in any way
related to, or part and parcel of, the
veteran’s PTSD. The claims folder and
the pertinent medical records contained
therein, including any additional medical
or other evidence that is obtained as a
result of the above development, must be
reviewed by the examiner in conjunction
with the examination. All necessary
tests and clinical studies, including the
Minnesota Multiphasic Psychological
Inventory (MMPI), are to be conducted.
The examiner should assign a numerical
designation or code on the Global
Assessment of Functioning (GAF) Scale
provided in the Diagnostic and
Statistical Manual for Mental Disorders.
It is imperative that the VA psychiatrist
include a definition of the numerical
code assigned under the manual. The
basis for any conclusions made or
opinions expressed should be clearly
explained, citing, if necessary, to
specific evidence in the record.
The examiner is requested to identify the
frequency and severity of all positive
findings, as well as to enumerate all
negative symptomatology, particularly any
symptoms set out in the following
categories:
(a) Occupational and social impairment
with reduced reliability and productivity
due to flattened affect; circumstantial,
circumlocutory or stereotyped speech;
panic attacks more than once a week;
difficulty in understanding complex
commands; impairment of short-and long-
term memory; impaired judgment or
abstract thinking; disturbances of
motivation and mood; difficulty in
establishing and maintaining effective
work and social relationships;
(b) Occupational and social impairment
with deficiencies in most areas, such as
work, school, family relations, judgment,
thinking or mood; suicidal ideation;
obsessional rituals which interfere with
routine activities; intermittently
illogical, obscure, or irrelevant speech;
near-continuous panic or depression
affecting the ability to function
independently, appropriately and
effectively; impaired impulse control
such as unprovoked irritability with
periods of violence;
spatial disorientation; neglect of
personal appearance and hygiene;
difficulty in adapting to stressful
circumstances; inability to establish and
maintain effective relationships; and
(c) Total occupational and social
impairment due to gross impairment in
thought processes or communication;
persistent delusions or hallucinations;
grossly inappropriate behavior;
persistent danger of hurting self or
others; intermittent inability to perform
activities of daily living;
disorientation to time or place; memory
loss for names of close relatives, own
occupation or own name.
If positive symptoms from more than one
of the above categories are identified,
the examiner is requested to identify
those which are most predominant based on
consideration of the entire contemporary
record and to provide an opinion as to
the level of occupational and social
impairment that most reflects the
veteran’s overall symptomatology and
level of disability.
4. The RO should review the report of the
psychiatric examination to ensure that it
adequately addresses the issues and concerns
that were noted by the Court in Karnas
and Hood, cited above, and in the Court’s
March 1997 order, which incorporated, by
reference, the points noted by the Office of
General Counsel and the veteran’s
representative in the joint motion that the
parties filed with the Court earlier in March
1997. If the report of the psychiatric
examination does not contain sufficient
information, then it should be returned as
inadequate for rating purposes and any
additional information that is necessary
included. 38 C.F.R. § 4.2.
5. The RO should thereafter review the claim
seeking a rating higher than 30 percent for
PTSD, with a broad and liberal interpretation
of the applicable regulations and legal
precedent, consistent with 38 C.F.R. §§ 4.3
and 4.7, and with consideration of the rating
criteria in effect both prior and subsequent
to November 7, 1996. The RO should also
consider whether the veteran is entitled to
an increased rate of compensation pursuant to
the provisions of 38 C.F.R. § 4.16, and
should provide adequate reasons and bases
explaining the rationale underlying all
conclusions that are material to the case.
If an increased rating is not granted to veteran’s
satisfaction, then he and his representative should be issued
a supplemental statement of the case and given an opportunity
to respond. The case should then be returned to the Board
for further appellate consideration. The Board intimates no
opinion, either legal or factual, concerning the ultimate
disposition warranted in this case.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Barry F. Bohan
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
- 2 -